Hearings this week in Freddie Gray case could focus on officers' statements

A Baltimore judge could rule this week whether statements provided by police officers involved in Freddie Gray's arrest and transport will be hidden from jurors or allowed as evidence in their pending criminal trials.

Prosecutors and defense attorneys will return to Baltimore Circuit Court downtown for hearings Tuesday and Wednesday, with defense motions to suppress the officers' statements to internal police investigators still unresolved. Prosecutors consider the statements key evidence in their cases, while defense attorneys have argued they were made under duress and in violation of the officers' rights.

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Five of the officers provided statements, while the sixth — Officer Caesar R. Goodson Jr., the driver of the police transport van in which Gray sustained a severe spinal cord injury — refused to talk.

The hearings could reveal more details about what the officers said in their statements, but more likely will focus on the specific procedures relied on by investigators to collect the statements, according to legal experts. In such procedural hearings, witnesses including police investigators may be called to the stand, experts said, but it's unclear if any will appear this week.

Like all defendants, officers have the right to remain silent in response to police questioning on matters in which they are involved. They are also protected by the state Law Enforcement Officers' Bill of Rights, which affords protections to officers accused of misconduct, as well as by legal precedent.

That precedent holds "police officers have immunity from prosecution for statements that they were 'forced' to give as a condition of their employment," said Amy Dillard, who teaches criminal law and criminal procedure at the University of Baltimore.

During their conversations with investigators, the officers discussed what they heard and saw during the 45 minutes between Gray's arrest and his arrival at the Western District police station, where he was found unresponsive in the back of the police van, The Baltimore Sun has reported.

The officers also discussed actions taken by their colleagues, as well as conversations they had with one another during multiple stops of the van. Prosecutors have said Gray asked officers for medical attention but never received it, and that he was shackled but not seat-belted in the police van, which is against department policy.

Officer William G. Porter, for example, told police investigators he had warned Goodson that Gray required medical attention, though he also said he wasn't sure if Gray was faking injuries to avoid going to jail, The Sun reported. Porter also told investigators he had informed Sgt. Alicia D. White that Gray needed medical attention. White told investigators she was not told Gray needed care.

The admissibility of the officers' statements is one of the most important unresolved issues before Circuit Judge Barry Williams, making it a likely focus of the latest motions hearings. The court announced the hearings last week but did not outline what issues will be addressed.

Prosecutors and defense attorneys either declined to discuss the hearings or did not respond to a request for comment.

Prosecutors have said previously that they consider the officers' conversations with investigators key evidence in the criminal cases, in which the officers face a range of charges, from second-degree murder to assault and misconduct in office.

The officers were granted separate trials in part because of concerns raised about the admissibility of their statements in a joint trial. And Porter is scheduled to be tried first, beginning Nov. 30, in part because prosecutors consider him to be a "material witness" against White and Goodson.

Meanwhile, attorneys for all five officers who gave statements have argued they were obtained in violation of the officers' right to remain silent and their protections under the Law Enforcement Officers' Bill of Rights.

In written motions, the attorneys have argued the officers gave their statements under duress for fear of losing their jobs, that some of them believed they were discussing what happened as witnesses rather than suspects, and that none were fully and properly briefed on their rights.

Gray, 25, was arrested and injured April 12 and died April 19. His death sparked protests against police brutality. His funeral on April 27 was followed by citywide rioting, looting and arson.

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Baltimore State's Attorney Marilyn J. Mosby announced charges against the six officers May 1, and they were later indicted by a grand jury.

Goodson is charged with second-degree murder. White, Porter and Lt. Brian W. Rice are charged with manslaughter. Officers Edward M. Nero and Garrett E. Miller face lesser charges, including second-degree assault. All six have been charged with misconduct. All have pleaded not guilty and are free on bail.

Williams could make a determination from the bench as to whether the police statements to investigators will be admitted at trial. He has issued opinions from the bench for all other motions discussed in open court to date.

Such a decision would be a turning point in the officers' cases, regardless of which way Williams rules.

When Rice was questioned by police investigators about the arrest and treatment of Gray, he was told the interview was "strictly" a procedural matter and was put "at ease" by the officers questioning him, according to his attorneys.

White was questioned once without being informed of her right to remain silent, then called back days later to be read her rights and provide a second statement, her attorneys have said.

Rice, White and Porter have all said they gave their statements under duress, for fear of losing their jobs. Rice and Porter have said they believed they were giving statements as witnesses, not suspects.

Miller and Nero also have argued their statements were taken in violation of their rights, though their filings included fewer details about the circumstances surrounding their giving statements.

Veteran criminal defense attorney Warren Brown said the burden will be on the prosecutors to demonstrate that the statements are "voluntary and knowing" and should be admitted. They will likely call investigators as witnesses to testify about how the statements were obtained. The officers themselves could even end up on the stand, he said.

"If the state says they weren't in custody, that the investigators were only getting a report and finding out what's going on, [the officers] would have to take the stand and give their state of mind," Brown said.

"One might argue, they know their rights, they don't need to be read their rights" because they are police officers and know the law, Brown said.

But, Brown said, courts also have been sticklers about ensuring all suspects in custody are given the Miranda warning that they have a right to remain silent. "The courts have been rather picayune when it comes to Miranda," he said. "They don't like any deviation from the message that is relayed in Miranda."

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Calling witnesses would be a sharp departure from previous hearings. Five of the officers appeared in court for the first time late last month. None of them spoke at length. Porter has yet to appear in court.

Goodson's trial is tentatively scheduled for Jan. 6; White's for Jan. 25; Miller's for Feb. 9; Nero's for Feb. 22; and Rice's for March 9.

The hearings Tuesday and Wednesday are scheduled to begin at 9:30 a.m.